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Single-Payer or Bust

A copy of H.R. 3200, America Affordable Health Choices Act of 2009 sits on the desk of House Energy and Commerce Committee Chairman Rep. Henry Waxman, D-Calif. on Wednesday, July 29, 2009.

The solution of any geometric problem begins with an assumption, and the assumption in this week’s political geometry is that the Supreme Court will overturn the Affordable Care Act that first opponents, then the rest of us, have come to call Obamacare. This may or may not come to pass. Judicial history is rife with Supreme Court oral arguments that seem to go one way only for the decision to go another. The great irony of Obamacare, of course, is that its most controversial provision, and the thing about it that has rallied conservatives against it, was itself a conservative article of faith for the past two decades right up to the moment that Barack Obama embraced it; and this is the notion—originally advanced as a response to Clintoncare by the right-wing Heritage Foundation and then championed until as recently as three years ago by Republicans, including former Massachusetts governor Mitt Romney and former speaker Newt Gingrich—that the government could and should compel individuals to take responsibility for buying their own health insurance. The right liked this idea precisely because it put the financial onus of health care on individuals rather than where President Bill Clinton believed it belonged: on the businesses that employ individuals.

This past Tuesday, the second day of the Supreme Court hearings, made apparent that skepticism abounds among the Justices about the constitutionality of this part of the plan. By the end of the next day, Wednesday, everything was more ambiguous, not only judicially but politically when a consensus manifested itself that, without the individual mandate, the law as a whole is either meaningless or so difficult to understand as to be impossible to uphold, let alone execute. What complicates the situation particularly for Anthony Kennedy, the man in the Court’s middle and the pivotal justice in this matter, as in others, is that notwithstanding opponents’ arguments as to its radicalism, the Obama plan was a compromise with conservatives, or an attempt at one—a middle-course approach finally embraced by a president who himself had raised questions about the mandate—and if the middle course should be struck down, then the Court has left the country facing two choices. One is a more far-reaching plan by which either employers or the government itself provides health-care coverage. The second is no plan at all, which is to say a status quo that even honest conservatives know is unsustainable for a national economy devoured by health care in exponentially-growing percentages.

Both history and budgetary reality dictate either some kind of health-care reform or monetary cataclysm. Should the Court strike down the mandate on the basis that, as Kennedy put it Tuesday, the compulsion forcing individuals into the health-care market fundamentally changes the relationship between the individual and the state, and should the Court thereby demolish the first-ever such reform to pass Congress, it’s not overstating things to suggest that the decision will leave the country in a kind of crisis. While it’s difficult to imagine that the Justices are unaware of this, it’s hard to know to what extent they take such a consequence into consideration, notwithstanding Justice Antonin Scalia’s musings during Wednesday’s session about what is legislatively feasible (this from the most outspoken critic of judicial activism, by which Scalia means not activism from the right but from the left). In the meantime the Obama campaign has three months to ponder what lemonade is to be made from the lemon and whether such a crisis can or should be transformed into a referendum. To be sure, this is a cynical consideration in the face of the havoc that overturning the act will have wrought, but campaigns are in the business of cynicism, and as they’ve done so often Republicans will cast the argument in its most malevolent terms, aimed at the heart of Obama’s legitimacy as both president and American, suggesting that the subversion of the Constitution by a former constitutional scholar pledged to uphold it verges on the impeachable.

It’s still not unthinkable that the Court could decide in favor of Obamacare 6-3, with Scalia, Samuel Alito, and Clarence Thomas the dissenters. Both Kennedy and Chief Justice John Roberts have enough historical ego to weigh not only where all this is going and where it could all lead but where it could leave the Court—and Roberts and Kennedy—in the eyes of history. They may already suspect posterity will take a dim view of recent court decisions involving voter registration and campaign financing, and whatever their personal ideological misgivings, neither may want to be attached to what in practical terms can only be one of the most controversial and pandemoniac decisions since Dred Scott. In what currently unfolds as the Be-Careful-What-You-Wish-For Election, the Court’s ruling has the clear capability of enflaming and motivating whichever side “loses” and thrusting ownership of this vexing issue on whichever side “wins”—including Republicans if the individual mandate they once cherished and now so loathe is struck, and Democrats if the act is upheld and thus becomes something to be defended before a public conflicted and confused about the issue from the outset. When the assumption in a geometric equation turns out to be wrong, the mathematician starts over, and sometimes the assumption proves something else entirely.

If the individual mandate is struck down it will be very important to have some organized avenues for the people who support a universal coverage, single payer system to have their voices heard. As somebody who spends about $15,000 a year for a crummy high deductible insurance plan for my wife and I, I am ready to donate time, energy and money into seeing a universal coverage, single payer plan succeed.

The best thing the American Prospect could do right now is get ready to inform us as to which organizations are ready to lead this kind of fight so that we can productively put our resources to work.

Geo77 - I couldn't agree more with your assessment that single-payer advocates must be ready and waiting to unleash an undeniable demand for single-payer if indeed the Supreme Court opens the door for us, and maybe even if they don't. I have hoped in vain for media sources like The American Prospect to give Healthcare-NOW! (www.healthcare-now.org), Physicians for a National Health Program (PNHP - www.pnhp.org) and the many statewide single-payer organizations some attention. Perhaps now, they will.

But I also want you to know about the Demonstration for Universal Healthcare happening on October 6 on the National Mall. As Chief Organizer of DUH (as in "Does America need a new healthcare system? DUH!"), you and your wife are exactly the kinds of people we're looking for to help us make history and propel the cause of single-payer forward.

Just as the civil rights movement was invigorated and propelled by the 1963 March on Washington, we believe if we get enough people to show up on the Mall, enough voices joined together to prove to our legislators, to the media, maybe even to each other that single-payer IS the thing that the American people want, there will finally be movement towards true universal healthcare in this country.

Your situation is not rare, unfortunately. Of course single-payer would provide you with the actual care you need, as well as saving you thousands of dollars, since there would be no constantly rising premiums, co-pays, deductibles, or co-insurance, but it's not just good for individuals. It's good for business (no more rising premiums, passing costs on to employees, no more workers' comp, separate costs for dental and vision, no more wrangling over benefits with unions or pension funds AND all your employees and their families would have access to the care they need, thus would be happier, healthier, more productive workers). It's good for the economy - the thousands saved by individuals and businesses would be available for purchasing good and services, expanding businesses, allowing for innovation and entrepreneurial endeavors. There would be no more Medicaid, children's insurance programs, AIDS Drug Assistance Programs. Pharmaceutical companies wouldn't lose billions providing low cost or free medications through patient assistance and co-pay assistance programs.

The only people who would have legitimate reasons to be against it are the insurers of today and even they would still be able to sell outrageous policies to the wealthy whose cosmetic surgery, experimental, unproven treatments, and unapproved drugs wouldn't be covered. Of course, the so-called "Christian Right" would object, along with Libertarians and Tea Partiers simply because they don't believe that healthcare is a human right that everyone deserves. I always want to ask them if they think Jesus charged a co-pay or refused to treat people with pre-existing conditions.

In any case, if you (or anyone else reading this) would like to help DUH become a reality, visit the website at www.duh4all.org and email me at sue4duh@gmail.com. We can do it, but we have to do it together, with courage and conviction!

I do not believe that there exists anywhere in the world today a trend toward
moving services or functions of any kind to massive top-down run government bureaucracies?
Single payor could have been put in place 50 to 70 years ago, but it is not going to
happen now.

If only the "mandatory purchase provision is struck down (as I think it may well be) but treed as severable (as I also think is both likely and correct), Then Congress could readily still tap into private funds so to cover most of the new costs the act newly imposes on the affected insurance companies by providing a "carrot" instead of its invalid stick, i.e., either a "deduction' for the premiium amount paid by the individuall to acquire and maintain the minimum health insurance policy as otherwise require by the law, if not a dollar-for-dollar tax credit, as still used in some few other instances. Either approach, each plainly constitutional, would predictably bring in most, perhaps nearly all, whose additional premium payments would sustain the financial viability of the balance of the act.
Wm. Van Alstyne
Lee Pofessor of Law

If only the "mandatory purchase provision is struck down (as I think it may well be) but treed as severable (as I also think is both likely and correct), Then Congress could readily still tap into private funds so to cover most of the new costs the act newly imposes on the affected insurance companies by providing a "carrot" instead of its invalid stick, i.e., either a "deduction' for the premiium amount paid by the individuall to acquire and maintain the minimum health insurance policy as otherwise require by the law, if not a dollar-for-dollar tax credit, as still used in some few other instances. Either approach, each plainly constitutional, would predictably bring in most, perhaps nearly all, whose additional premium payments would sustain the financial viability of the balance of the act.
Wm. Van Alstyne
Lee Pofessor of Law

As a lawyer who has pracitced Constitutional law and taught it for many years I find this whole debate entirely political and the equivilent of asking "how many angels can dance on the head of a pin." All Congress would need to do is change the wording and instead of a penalty for not buying insurance change the wording to "tax." Congress has almost unlimited powers to tax so the whole issue is merely a matter of semantics.

Additionally the federal government requiring an individual to buy health insurance is hardly a new concept. In 1798 Congress passed a law requiring sailors to buy health insurance and it was signed into law by one of our preeminent founding fathers; John Adams.

The people who say everyone should pay insurance premiums or pay a fine forget that there are millions of Americans who live on the streets, who are without income save what they can forage from panhandling. They cannot afford to pay either premiums or fines. For the most part, they are physically or mentally disabled and couldn't work even if there were jobs available for them. How are they supposed to fit into the ACA? What does Congress or SCOTUS care about them?

I cannot understand why the Obama Administration chose to argue that if the mandate is struck down the insurance reforms should go, too. Yes, I understand that without the mandate there will be issues of adverse selection and "death spirals" of premiums. But why would the Administration not want the insurance industry to have a stake in fixing the legislation? Give the industry a dog in this fight, too. (Close observers will note that the ONLY amicus briefs filed in favor of the Administration's severability argument were from the insurance industry and the actuaries.) One more episode of the Administration compromising with itself.

The Obama administration had decided to omit a severability clause in the ACA because they thought it would signify a loss of confidence. It was a tactical decision that was thought necessary to get the ACA through Congress.

Healthcare is a fundamental human need. Access is not equal if it depends on wealth. Our healthcare delivery system should include neither employers nor insurance companies. It should not be focused on anyone's bottom-line, but on improving health and healthcare for all.

Healthcare is a fundamental human need. Access is not equal if it depends on wealth. Our healthcare delivery system should include neither employers nor insurance companies. It should not be focused on anyone's bottom-line, but on improving health and healthcare for all.